Town of Belleair v. Moran

• Decision Date: 19 February 1971
• Docket Number: No. 70--584,70--584
• Citation: 244 So.2d 532
• Parties: TOWN OF BELLEAIR, a Municipal Corporation, and United States Steel Corporation, a Delaware Corporation, Appellants, v. Edward MORAN, George Mariani, Robert M. Snibbe, Dorrance S. Roysdon, Miriam Van Vliet, Mabel P. Ahlf and William R. LaRosa, Appellees.
• Court: Florida District Court of Appeals

Page 532

244 So.2d 532

TOWN OF BELLEAIR, a Municipal Corporation, and United States Steel Corporation, a Delaware Corporation, Appellants, v. Edward MORAN, George Mariani, Robert M. Snibbe, Dorrance S. Roysdon, Miriam Van Vliet, Mabel P. Ahlf and William R. LaRosa, Appellees.

No. 70--584.

District Court of Appeal of Florida, Second District.

Feb. 19, 1971.

Joe R. Wolfe, of Wolfe, Bonner & Hogan, Clearwater, for appellant, Town of Belleair.

John D. Fite, of Richards, Nodine, Gilkey, Fite & Meyer, Clearwater, for appellant, U.S. Steel Corp.

Charles S. Carrere, of Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellees.

McNULTY, Judge.

This controversy involves certain rezoning ordinances enacted by appellant Town of Belleair allegedly at the instance of appellant United States Steel Corporation.

Plaintiffs-appellees filed suit for injunctive relief challenging such ordinances alleging the interrelationship of appellants, and the interests of United States Steel Corporation in the resultant rezoning. Additionally, it is alleged that such rezoning is 'not in the best interest of the community'--that it favors 'the private interests of United States Steel Corporation to the detriment of the public interests of the community'--that the 'change in zoning was not made in accordance with a comprehensive plan'--that it 'did not promote health and the general welfare'--that it 'failed to conserve the value of buildings in the remainder of the community or to encourage the most appropriate use of the land throughout such municipality'--that it 'substantially altered and drastically changed the character of the town'--that it 'was not made with reasonable consideration, among other things of the character of the district and its peculiar suitability for particular purposes'--and that it caused 'permanent impairment and damage to the existing zoning * * * tax structure * * * topography * * * ecology * * * climatology * * * and * * * rustic and residential character of the area, thereby causing serious and substantial harm to the aesthetic qualities to the area.' Appellants' motions to dismiss this complaint were denied and this interlocutory appeal followed. We affirm.

Only two points on appeal merit discussion. First, whether an injunction suit is proper instead of a certiorari proceeding pursuant to Rule 4.1, F.A.R., 32 F.S.A. and (since we answer that question in the affirmative), secondly, whether the complaint failed to show that the Town had not acted within the permissible scope of its authority and discretion in taking the action complained of. As to the first question, a suit for injunctive relief is proper since the proceedings under review were legislative rather than quasi-judicial in nature. In such case certiorari is inappropriate. ¹ Additionally, this case is a direct attack on the validity of the Town's actions and clearly differs from one in which an appeal is sought from a decision of a Board of Adjustment relating to a variance and made pursuant to Ch. 176, F.S.A. ²

As to the second point on appeal which we will discuss, we are of the view that the complaint is sufficient. First of all, it is well settled that a zoning ordinance is a valid exercise of police power only when there is a statutory authority to enact it ³ and when it bears a substantial relation to the public health, safety, morals or general welfare, ⁴ or when it is in aid of a comprehensive plan favorable to such objectives. ⁵ Here, the express statutory authority given to the Town of Belleair to zone is found in C. 14583, Spec.Acts 1929, the criteria of which are adopted in Section 54 of the Belleair Code as follows:

'Such (zoning) regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.'

There is no contention made that either the special act or the section of the Town code referred to is invalid or insufficient, and their provisions substantially satisfy the objectives for which the zoning power may be granted. Accordingly, a zoning ordinance enacted pursuant thereto is presumptively valid, and one seeking to invalidate it has the burden of showing its invalidity. ⁶

Now, as we've noted, a zoning ordinance must bear a substantial relationship to public health, safety, morals or general welfare. When, therefore, from the facts and circumstances alleged in a complaint attacking the validity of a zoning ordinance it patently appears that any such relationship is nonexistent, or at most sophistically apparent, the duty should be on the zoning authority to respond and allege sufficient facts to demonstrate that the matter is at least 'fairly debatable.' ⁷ Here, the petition can hardly be couched in stronger terms insofar as it charges noncompliance with the required criteria. True it is that the ultimate charges are conclusionary in nature, but they are conclusions based on facts otherwise stated or inferred from the allegations in the complaint and the attached exhibits. Additionally, from the facts and circumstances pleaded as leading up to the enactment of the challenged actions of the Town, together with the pleaded physical and use character of the areas affected and the alleged results, it is difficult Prima facie to see how such actions inure substantially to the health, safety, morals or general welfare of the community. They may indeed so inure; but this is not demonstrated, we submit, by rhetoric or necessary implication from the picture drawn within the four corners of the complaint, nor is it patently 'fairly debatable.' The Town, by answer, ought to put plaintiffs on strict proof of their charges or affirmatively plead facts which bring these essential matters within the 'fairly debatable' rule. Upon full hearing, then, the material ultimate facts on the issues thus framed can be determined an the proper conclusions of law drawn accordingly. In its present posture the case is not yet ripe for dismissal.

Affirmed.

MANN, J., concurs.

PIERCE, C.J., dissents with opinion.

PIERCE, Chief Judge (dissenting).

I must dissent.

Appellants Town of Belleair (hereinafter the Town) and United States Steel Corporation (hereinafter the Corporation) bring this interlocutory appeal here from an order of the Pinellas County Circuit Court denying the motion of appellants, as defendants in the lower Court, to dismiss the complaint filed against them by appellees as plaintiffs therein.

The controversy between the parties arose as a result of disagreements among the local citizens concerning certain rezoning of properties located in the Town. It is unnecessary, for purpose of disposition of the instant appeal, to go into the intricate details of the various contentions of the local factions. The Board of Commissioners of the Town took action to rezone two areas of the town, the effect of which would, among other things, impose certain restrictions on the use of a portion of Coe Road in the Town; and to enter into an agreement with the Corporation concerning its town properties.

The appellees (hereinafter the plaintiffs) filed complaint in the Circuit Court as a class action, alleging generally that the official actions of the Board of Commissioners would be detrimental to the community and its citizens as taxpayers, and also because it favored the private interests of a 'single corporation over the public interests of the community'. Various other objections to the Board's actions were alleged.

The Town and the Corporation filed motions to dismiss the complaint on several grounds, viz: (1) a certiorari proceeding was the proper remedy for challenging the Board's actions, (2) the plaintiffs lacked 'standing' in Court because they did not allege they suffered any special damages by virtue of the municipal actions complained of, (3) the petition was not verified when filed in Circuit Court, and (4) the petition failed to show that the Board had not acted within the permissible scope of its authority and discretion in taking the actions complained of.

The motions to dismiss were denied, and the Town and the Corporation have filed their joint interlocutory appeal to this Court to review said order. I will discuss the points raised seriatim.

(a) Proper mode of relief.

The procedural objection raised by the Town and the Corporation does not require extended discussion. § 70 of the Charter of the Town of Belleair, Ch. 14583, § 8, Special Acts, 1929, reads as follows:

'Any person or persons, jointly or severally, aggrieved by any act of the Board of Commissioners under the powers herein granted to said Board may present to the Judge of the Circuit Court of Pinellas County, Florida, A petition duly verified, setting forth that such act is Illegal in whole or in part, Particularly specifying the grounds of illegality. Such petition shall be presented to said Court Within thirty days after the act or acts of the Board of Commissioners upon which the petition is based Or no action, suit or other proceeding in any manner questioning the Legality of said act or acts Shall lie for any cause whatsoever.' (Emphasis supplied).

This Section in my opinion is controlling in challenging the legality of actions of the governing body of the Town of Belleair. Extraordinary remedies, such as certiorari, prohibition, mandamus or injunction may be...